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DIRECTIONS IN DEVELOPMENT

Decentralization of Education

Legal Issues

Ketleen Florestal

Robb Cooper

The World BankWashington, D.C.

e 1997 The International Bank for Reconstructionand Development/ THE WORLD BANK

1818 H Street, N.W.Washington, D.C. 20433

All rights reservedManufactured in the United States of AmericaFirst printing June 1997

The findings, interpretations, and conclusions expressed in this study areentirely those of the author and should not be attributed in any manner to theWorld Bank, to its affiliated organizations, or to members of its Board ofExecutive Directors or the countries they represent.

Cover photograph, by Curt Camemark of the World Bank, is a scene from anAga Khan Foundation School in Pakistan.

Ketleen Florestal is an economist with the Ministry of Economy and Finance ofthe Republic of Haiti and a former member of the minister's staff; she holdsadvanced degrees in both economics and law. She wrote this book as an eco-nomic policy management intern with the World Bank's Human DevelopmentDepartment.

Robb Cooper is a partner with the law firm of Scariano, Kula, Ellch and Himesin Chicago and an associate professor of Leadership and Educational PolicyStudies at Northern Illinois University. He is the author of Instructor's Mantualfor Teachers in the Law (Longmans Press) and numerous publications in legaljournals. He wrote this book as a consultant to the World Bank's HumanDevelopment Department.

Library of Congress Cataloging-in-Publication Data

Florestal, Ketleen, 1963-Decentralization of education: legal issues / Ketleen Florestal,

Robb Cooper.p. cm. - (Directions in development)

Includes bibliographical references (p. ) and index.ISBN 0-8213-3933-81. Educational law and legislation. 2. Schools-

Decentralization. I. Cooper, Robb, 1951- . II. Title.III. Series: Directions in development (Washington, D.C.)K3740.F58 1997344'.07-dc2l 97-20083

CIP

Contents

Foreword vPreface viiAcknowledgments ix

1 Decentralization: Differences in Form, Degrees, and ContextDeconcentration, Decentralization, and Devolution 2The Question of Formal Control 4Shared Responsibilities 6Decisionmaking Authority 6Context and Pace of Decentralization 7

2 Legislation for Decentralization 12Diversity of Legal Instruments 12Contents of the Legislation 13Potential Conflict between Laws 15

3 Items to Include in the Decentralization Legislation 22Students and School Choice 22Teacher Employment, Certification, and Academic Freedom 23Curriculum and Instruction 24Assessment of Learning 25Facilities 26Funding 27

4 Getting from Here to There:A Road Map for the Decentralization Process 29

Glossary of Legal Terms 31

References 33

iii

Foreword

This book was produced by the Education Team of the HumanDevelopment Department of the World Bank. It is one in a series

covering a range of topics relating to restructuring education systems.As part of education and public sector reforms, many countries arechoosing to decentralize the administration and financing of educationservices to the regional, local, or school level.

Successful decentralization of school systems is neither quick noreasy. It requires changes on many fronts, behavioral as well as institu-tional. This book deals with one aspect of the institutional changesneeded in the decentralization of primary education systems: the legalaspect. It gives an overview of the legal issues involved and providessuggestions for designing the necessary legislation. The approach ispractical. The book attempts to give suggestions to those who plan andimplement education decentralization programs on the legal issuesthat they are likely to encounter and on preparation of the necessarylegislation.

We hope that the practical nature of the book will make it useful to awide audience of educators and administrators dealing with the com-plexities of education system development.

David de FerrantiDirector

Human Development NetworkThe World Bank

v

Preface

The responsibility for providing basic education is firmly writtenl into the law in nearly all countries. National constitutions often

mandate free and universal primary education, national and state leg-islatures enact laws to govern the provision of basic education, andgovernments and local administrations adopt regulations to imple-ment these laws. To the lawyer, education law is part of administrativelaw, although education issues also spill over into a number of otherbranches of law. Every major attempt to decentralize basic educationsystems throughout the world has involved changes in the law.

Of course, other factors also influence the outcome of decentraliza-tion. While a formal education system is a product of the law, andreform efforts will require changes in the law, it is also true that

Decentralization does not come with the passing of laws or sign-ing decrees. Like most types of reform it is built rather than cre-ated. It happens slowly because the organizational culture (e.g.,"the way we've always done things around here") must be trans-formed, new roles learned, leadership styles altered (e.g., shiftingfrom controlling to supporting behaviors), communication pat-terns reversed, planning procedures revised (e.g., bottom up andtop down), and regional policies and programs developed.(Hanson 1995: 9)

Indeed, decentralization has sometimes taken place without any leg-islative action. In a number of African countries and in Haiti, for exam-ple, "the transfer of service provision has been more de facto than dejure as central governments have simply become unable to exercisetheir established financial and administrative responsibilities in vari-ous sectors, instead passing them along to the local level by default"(Blair 1995: 19). Even in these cases, as governments resume the rolethey are expected to play in providing basic education, legal issues willneed to be addressed.

The purpose of this book is to inform education policymakers, plan-ners, and practitioners about international experience in the legal

vii

viii DECENTRALIZATION OF EDUCATION: LEGAL ISSUES

aspects of decentralizingbasic education. It also provides a basic under-standing of how instruments such as laws and regulations can be usedfor education reform. There are four main sections. The first examinesthe general legal aspects of decentralization; the second looks moreclosely at decentralization laws and regulations; the third is, in effect, achecklist of items that should be included in decentralization laws; andthe fourth sets out a road map to help the planner prepare and imple-ment the laws required for reform.

Each country has different laws, and the terms used in one countrymay have different definitions in other countries. We have tried to keepthe discussion of legal matters as general as possible here, so that thisbook can be used in any country. Still, the legal analysis is based on thelegal systems of the Western world or the legal systems that theyinspired.

Finally, the term decentralization will be used in two different ways.First, it will denote all efforts aimed at transferring decisionmakingpower in basic education from the administrative center of a country(such as the central ministry of education) to authorities closer to theusers (such as countries, municipalities, or individual schools). Second,it will be used in a more technical sense to describe one of the manyforms this type of reform can take, and in this narrow sense it will becontrasted with deconcentration and devolution (see glossary).

Acknowledgments

This book is part of a larger effort by the Education Group of theWorld Bank Human Development Department to understand best

practice in the decentralization of education systems. The paper waswritten under the direct supervision of Marlaine Lockheed, task man-ager, and the general guidance of Maris O'Rourke, senior educationadviser. The paper benefited greatly from the advice and detailed com-mentary of Louis Forget, legal adviser, institutional affairs, andBertrand du Marais, counsel, both of the World Bank's LegalDepartment, and Anne-Marie Leroy, senior public administration spe-cialist, Europe and Central Asia and the Middle East and North AfricaRegions Technical Department. Eluned Roberts-Schweitzer contributedresearch and discussion. The book was reviewed by members of theWorld Bank Advisory Committee for Education Decentralization:Albert Aime, Hans Binswanger, Sue Berryman, Timothy Campbell,Cathy Gaynor, Elizabeth King, Bruno Laporte, Dzingai Mutumbuka,Maris O'Rourke, Juan Prawda, Eluned Roberts-Schweitzer, AlcyoneSaliba, Donald Winkler and Carolyn Winter. A preliminary version ofthe paper was presented at the Annual Meeting of the Comparativeand International Education Society on March 24, 1997. AncaNovacovici provided excellent word processing and research backup.Ilyse Zable, American Writing Corporation, edited the book, andDamon lacovelli, American Writing Corporation, laid it out.

ix

1

Decentralization: Differences in Form,Degree, and Context

n a centralized primary education system most decisionmaking,imonitoring, and management functions are concentrated in thehands of an education ministry or department. The central govern-ment regulates all aspects of the system, including those related to stu-dents, teachers, funding, and facilities. It sets policy and performsmanagement functions, such as paying teachers, and providing pre-service and inservice instruction. Since in practice some matters mightbe dealt with locally, school officials are given some power, but it islimited to day-to-day management, and they have very limited scopefor initiative.

By contrast, a decentralized system is characterized by the exerciseof substantial power at the local level on many aspects of primary edu-cation, subject to some limited control by the central government.Responsibility may be decentralized to a region, a province, a district,a town, or an individual school or a group of schools.

In practice, most basic education systems have both centralized anddecentralized elements. In a partially decentralized system some pow-ers remain in the hands of the central authority, and some are exercisedlocally. Planners involved in a decentralizing reform must identifywhich components of the system are more appropriately managed atthe central level and which at the local level, given the country's par-ticular circumstances and the objectives of reform.

Countries decentralize their basic education systems for a variety ofreasons: to save money and improve management efficiency and flex-ibility, to transfer responsibility to the most capable level of govern-ment, to raise required revenues, to conform with a wideradministrative reform or with the general principle that administra-tive responsibility should be vested in the lowest capable level of gov-ernment, to give users a greater voice in decisions that affect them, tobetter recognize local linguistic or ethnic diversity. It is important todefine the objectives of decentralization at the outset, so that they canact as measures of its success.

1

2 DECENTRALIZATION OF EDUCATION: LEGAL ISSUES

Deconcentration, Decentralization, and Devolution

So far, we have used only the broad meaning of decentralization: tomove decisionmaking away from the center and closer to the users ofthe service. We now must look at the different kinds of decentraliza-tion. The general literature identifies three types of decentralization:deconcentration, decentralization proper (or delegation), and devolu-tion. In the context of basic education we are concerned mainly withdeconcentration and devolution.

Defining Deconcentration

Deconcentration is "the handing over of some amount of adminis-trative authority or responsibility to lower levels within central gov-ernment ministries or agencies" (Rondinelli 1984: 10). From a legalstandpoint the key feature of deconcentration is that the people givenadditional responsibility are part of the central ministry, and theycontinue to act under the supervision of that ministry. In other words,decisionmaking authority is transferred within the same legal entity.Deconcentration puts more responsibility in the hands of centralministry officials who are located closer to the users of the serviceand will thus, it is expected, be more responsive to local needs. Butdeconcentration does not modify the basic notion that the peoplemanaging the education system are agents of the ministry. They actin the name of the ministry and are accountable to it. The centralministry remains responsible for the acts of its agents and for fund-ing the system.

Distinguishing between Decentralization and Devolution

Devolution and decentralization in its narrow sense are characterizedby the idea that the body or agency receiving the new powers is legallyseparate from the central ministry, which initially held those powers,and does not report to the central ministry. Authors differ somewhat indistinguishing between decentralization and devolution. In the case ofdecentralization (which is sometimes referred to as delegation) thebody receiving the powers is typically a public corporation or a regionalagency that may be subject to significant control by the central ministry.

DECENTRALIZATION: DIFFERENCES IN FORM, DEGREE, AND CONTEXT 3

There are few instances of this type of decentralization in the area ofbasic education.

In the case of devolution-a term found mainly in the English-lan-guage literature-the power to regulate the provision of basic educa-tion is given to local governments or to other local bodies that areassociated with local governments. Often, the local body made respon-sible for some aspect of basic education is a local government (such asa county or a town government) or an agency with a territorial juris-diction matching that of a local government (such as a county or munic-ipal school board). Sometimes responsibility can be handed over to abody exercising jurisdiction over one or several schools. The Frenchequivalent is decentralisation or decentralisation territoriale.

Devolution has four key features: the body that exercises responsi-bility is legally separate from the central ministry; the body acts on itsown, not under the hierarchical supervision of the central ministry; thebody can exercise only the powers given to it by law; and the body canact only within the geographic limits set out in the law. Also, such bod-ies are often supervised by a board of officials elected by the local pop-ulation. Because the local body is legally separate from the ministry, itcan enter into contracts and conduct other transactions in its own name.The local body is fully responsible for its acts; the central ministry hasno responsibility unless the law specifies other arrangements.

Although the local body is not under the control of the ministry, it isnevertheless not entirely free to do as it pleases. Local governmentsmust act within the limits set for them by law. These constraints alsohold for special bodies established specifically to control certain aspectsof the provision of basic education. Such bodies can act only within thelimits set out in the legislation establishing them.

As a consequence of devolution, the local body is responsible for thefunctions assigned to it by law. Its agents act on behalf of the local body,and only the local body, not the central ministry, is responsible for them.As will be seen later, this has important consequences for the financingof basic education. A local body may be given responsibility for man-aging schools or paying teachers. Without a reasonably assured sourceof funds or the power to raise funds independently, the local body maynot be able to discharge its new responsibilities. Similarly, grantingauthority to local bodies can be successful only if those bodies have theadministrative capacity to discharge their responsibilities.

One of the usual objectives of decentralization is to improve the effi-ciency and equity of primary education by transferring responsibilityto local authorities. However, unless the reform is well planned andimplemented, these objectives may not be fully realized. For example,if legislation decentralizes the source of funding, leaving it up to local


authorities to raise funds, there may be a significant lag between thetime when the central authority is freed from its responsibility and thetime when local authorities have the capacity to raise and allocatefunds. In such a case, if legislation does not provide for a transitorysolution, such as a compensating grant scheme, regional disparitiesmay develop.

The law generally specifies the duties and obligations of schoolboards. In New Zealand, for example, The Education Act of 1989 givesa school's board of trustees "complete discretion to control the manage-ment of the school as it thinks fit" (section VII, paragraph 75). A board"may from time to time, and in accordance with the State Sector Act1988, appoint, suspend, and dismiss staff" (section VII, paragraph 65).

In Nicaragua the municipal education councils, established bydecree of the Ministry of Education, are responsible for administrativefunctions delegated by the center to the local or municipal level (Gaynor1996).

Local bodies may be subject to a wide range of general laws, in addi-tion to those dealing directly with education. For example, in Ontario,Canada, "in addition to legislation, regulations and policies on educa-tion, school boards must comply with other legislation such as theOccupiers' Liability Act and the Occupational Health and Safety Act,unless exempted by the statute." Thus there are "many non-educationstatutes both federal and provincial which directly or indirectly governor determine the conduct of school boards" (Brown and Zuker 1994:11). For instance, they may have the general duty of caring for students,and "failure to have an adequate playground supervision policy couldresult in a finding of negligence against the board where the failureresults in an accident" (Zuker and Brown 1994: 50). Similarly, a schoolor school board may have the legal responsibility for hiring and couldbe sued for employing inadequate personnel.

The Question of Formal Control

A key question in any decentralization effort is to define how much con-trol the central ministry will exercise over the local body. At one extreme,if the central ministry controls local bodies as tightly as it controls itsown agents, the situation would be that of deconcentration, not decen-tralization or devolution. At the other extreme, if the central govern-ment exercised no control, the local body would have political power,and the situation would be that of a federal state. It is between theseextremes that the control of the central government will be defined.


Generally, local bodies can act only within the limits of the law thatestablished them or regulate them. In some cases a government min-istry may exercise control over them. For example, local governmentsare often under the indirect control of the ministry of the interior. Inother cases control may be exercised through court actions. In somerare cases control may be exercised only before a decision of the localbody becomes effective (such veto power would end the autonomy ofthe local body). In others control can be exercised only after the deci-sion has been made.

The decisions of the local body may be subject to annulment undercertain conditions specified in the law. Alternatively, the controllingbody may have the power to force the local body to reconsider its deci-sion. The law may also provide an emergency scheme, under which thelocal authority's powers would be repealed if it failed to act in a man-ner consistent with the law. In either case the law would determinewhether remedial action could be taken by the central ministry or by acourt.

When devolving decisionmaking authority, policymakers may wantto balance local bodies' autonomy with some control by the centralauthority or the judiciary. A careful balance must be struck between theneed to provide safeguards against local bodies taking arbitrary actionsand their need to maintain autonomy. One option is to leave it to indi-viduals affected by an allegedly arbitrary decision of a local body toseek redress through court action. Another option is to provide a repealor suspension mechanism, such as granting veto power to the centralauthorities or allowing for the reversal of power from the local bodiesto the center. However, if procedural requirements for vetoing orrepealing an act are too strict, they may inhibit the exercise of such anoption.

An example of such a control mechanism is found in Papua NewGuinea, where the national government has been given the power toveto provincial tax laws if it regards them as discriminatory (particu-larly against residents or products of other provinces) or excessive (ifthey affect taxpayers' capacity to pay central taxes). This power torepeal is limited. The vetoing process involves not only the central gov-ernment but also the National Parliament and the National FiscalCommission (NFC). It ensures that the Parliament and the NFC pro-vide protection against arbitrary actions by the central government butlimits their power to disallow provincial laws even if they reveal them-selves as inefficient or inequitable (Ghai and Regan 1988).

Even if local authorities are given the exclusive right to take initia-tive on education matters, a certain level of control may still remainat the center. That level will indicate the extent to which there is a


move toward decentralization. Limiting the powers of local authori-ties may influence their willingness to undertake new functions.Nevertheless, such a restriction may be justified if local bodies areinexperienced. If they fail to perform the newly allotted functions cor-rectly, the central authority would be allowed to override theirpowers.

Shared Responsibilities

The formal controls established by law are not the only limits placed onlocal bodies' freedom to act. Since the components of the education sys-tem are by and large interdependent, the actions of local bodies mayalso be limited by the actions of the central authority. For several aspectsof the system there are many types of relationships that can be estab-lished between the central government and local bodies.

For example, even if local authorities are given responsibility for thecurriculum, their freedom of action may be limited by national require-ments dictating the minimum standards students must meet to moveup to the next level. The central government may also set the broadparameters of the curriculum and then let local authorities choose text-books, or it can impose topics for a part of the school day, leaving therest of the time for local curriculum. Funding school systems may alsoraise issues concerning shared responsibilities, depending on the free-dom local authorities have to establish their own budgets and raisetheir own resources.

Such shared distribution of power may affect local accountabilityand efficiency. If decisionmaking capacity is awarded exclusively tolocal bodies, accountability may be enhanced. On the other hand,shared responsibilities may promote efficiency and consistency if thecentral authority can better the process or if local bodies are not readyto assume full responsibility.

Decisionmaking Authority

Countries that decentralize their primary education systems will startfrom varied governmental structures (very centralized, moderatelydecentralized) and distribute responsibilities for education functionsdifferently (see box 1). Several factors will influence where within thelocal government structure education powers and responsibilities are


transferred. These factors include financial considerations, such as thepotential to raise funds, proximity (geographic and administrative) tothe facilities and to the users of the system, and the present and poten-tial management capacity of the bodies involved.

In Argentina reforms initiated in 1978 resulted in the transfer ofresponsibility to the provinces, but "no deconcentration to the munici-palities has been ever attempted within the decentralization process"(Prawda 1992: 60). In Ghana "the decentralization of the educationadministrative system has shifted the locus of responsibility and man-agerial functions from regional to district level" (Asare-Bediako andothers 1995: 24). In Zambia the Ministry of Education recognized thatthe existing system was too centralized and in August 1995 proposed areform of the Education Act that would establish district educationboards.

Context and Pace of Decentralization

Decentralization can take place as part of wider political reforms, as inSouth Africa and Eastern Europe, or it can be undertaken in the absenceof such reforms. Decentralization can be completed quickly, as was thecase in New Zealand, or be achieved more gradually.

The many variations can be summarized by three broad categories.First, when education reform is undertaken as part of an overall decen-tralization program, there is usually room for effective geographicaland functional decentralization. Assuming that a consensus on theneed for reform is reached, legislation mandating the decentralizationof government may also include provisions on the decentralization ofeducation (see box 2).

Second, if the decentralization of government has already been pro-vided for (or taken place), then at the time of reform local and regionalgovernment structures will already exist legally and in practice.Decentralizing education may be facilitated if strong regional infra-structures are in place. For example, in Chile in the early 1980s, "the rel-ative ease of institutionalizing decentralization was attributable to thestrong administrative capacity at all levels of government and by effec-tive public financial management and control at the center" (Espinola1995: 1). However, problems may arise if existing local entities arepoorly suited to carry out education functions. Parallel structures mayhave to be created for education. If responsibilities are not clearly delim-ited, local school authorities may end up competing for power withlocal government structures.


Box 1. Local Government Structures

Government bodies below the national level vary from country to country interms of their degree of autonomy, legal personality, and governance struc-ture. Within federal countries there may be significant differences among thefederated states. Also, names of local govemment units can have differentmeanings in different countries.

Generally, two levels can be identified below the central state (or in thecase of federal countries, below the federated states, which usually haveresponsibility for education): an intermediate level between the central stateand the municipality (such as counties or districts in many English-speakingcountries, or regions and departments in France), and municipalities. Insome countries, however, the bodies exercising responsibility for educationmay not have the same territorial scope as any of the government levels. Forexample, the territorial jurisdiction of the French academies does not matchexactly the territory of the regions.

GhanaThree levels of local govemment share responsibility for education: the dis-trict, the municipality, and the metropolis. Under the 1993 Local GovernmentAct the govemments are to be created by the president according to (at least)the following criteria:

* For a district, a minimum population of 75,000.* For a municipality, a geographic area consisting of a single compact set-

tlement and a minimum population of 95,000.* For a metropolis, a minimum population of 250,000.

PhilippinesThe Local Government Code of 1991 distinguishes four principal local gov-emnment units:

Third, the decentralization effort may be confined to the educationsector. This may be the case in a centralized government, where at theoutset responsibility for education functions were not well defined. Italso may be the case if education is considered a test sector for decen-tralization. Moreover, political pressure may also reduce wider decen-tralization schemes to only the education sector. When education isdecentralized in such a context, the task goes beyond creating new lawsand regulations (see box 3).

It becomes crucial at the beginning to ensure that all implementationissues, such as the establishment and administration of local gover-nance structures (whether under a deconcentration or a devolutionscheme), are dealt with in order to avoid the risk that the reforms will


* The barangay, which "may be created out of a contiguous territory whichhas a population of at least 2,000 inhabitants" (Section 236) and which "asthe basic political unit . .. serves as the primary planning and imple-menting unit of government policies, plans, programs, projects and activ-ities in the community" (Section 384).

* The municipality, "consisting of a group of barangays, serves primarilyas a general-purpose government for the coordination and delivery ofbasic regular and direct services and effective governance of the inhabi-tants within its territorial jurisdiction" (Section 440). A municipality maybe created if it has an average annual income as certified by the provin-cial treasurer of at least 2.5 million pesos for the last two consecutiveyears based on the 1991 constant prices, and a population of at least 25,000inhabitants.

* The city, "consisting of more urbanized and developed barangays, servesas a general-purpose government for the coordination and delivery ofbasic, regular, and direct services and effective governance of the inhabi-tants within its territorial jurisdiction" (Section 448). A city can be createdif it meets a composite list of criteria on income, size, and population(Section 450).

v The province, "composed of a cluster of municipalities, or municipalitiesand component cities, and as a political and as a corporate unit of gov-ernment, serves as a dynamic mechanism for developmental processesand effective governance of local government units within its territorialjurisdiction." A province also must fulfill a minimum income criterionand a geographic size or population criterion.

Source: Ghana, 1993 Local Government Act; Philippines, Nolledo 1994.

be made in an institutional vacuum and suffer from a lack of experi-ence, infrastructure, and implementing bodies. The experience ofPapua New Guinea is telling in this regard. Administrative decentral-ization of the education sector was introduced in 1970 with the creationof district education boards (DEBs). It was only in 1977, however, thatpolitical decentralization was undertaken and provinces created. TheDEBs were transformed into provincial education boards withextended powers (Bray 1996).

In most cases reform was not accomplished by the passage of a sin-le law, and there were several waves of legal reforms. In Chile, for

-mple, the decentralization process was accomplished in two stages:tancial decentralization between 1973 and 1989 followed by a ped-


agogic decentralization in 1990-95. The financial decentralization wascarried out through the enactment of two decree-laws: the municipalrevenues law that enabled municipalities to make use of a higher shareof fiscal funding and to administer education, health, and other socialservices (Decree Law No. 3073: 1979), and the subsidy law, whichimproved the existing subsidy to private schools by substantiallyincreasing the subsidy value and by allocating resources according tothe number of pupils attending each school (Decree Law No. 34676:1980)" (Espinola 1995: 3). In fact, Chile "induced privatization of pri-mary education through decentralization." Also, "the Chilean privatesector participating in the delivery of primary education is obliged tocomply with the existing educational legal frame set by the central gov-ernment, and is only accountable to the consumer (students and par-ents) for the services provided" (Prawda 1992: 14).

Box 2. India's Experience with Decentralization

The decentralization of the Education Service in India is the outcome of ademocratic decentralization that was initiated a few decades ago andwhose main thrust was the implementation of the panchayati raj institu-tions, three-tiered governance structures of locally elected bodies. Thepresent decentralized system was initiated by constitutional mandate(Constitution 73rd Amendment Act, 1992, or CSTA) leaving each state theinitiative of passing the appropriate Conformity Act by April 1994. Theconstitutional mandate itself left considerable room for the state govern-ments to design their own functional mapping of local govemance sub-ject to "the availability of funds" and as they "deemed fit." As a resultsome states devolved a considerable number of their education functionsto the local level, making the panchayats models of self-governance; oth-ers did not and had their panchayats remain only "agents" of the stategovernment.

Fiscal autonomy varies. Some states have empowered the panchayatsat all levels to approve their own budgets and by-laws, levy taxes, bor-row from financial institutions without the approval of a higher tier ofpanchyat or of state government, while others have left the preparationand presentation of budgets to the executive authority rather than to theelected representatives.

The links between different tiers of government, especially thosebetween the state and substate levels, vary from one state to another anddetermine the degree of decentralization of the education sector. Certainstates (such as Kerala) have not devolved education functions to the pan-chayati raj institutions.

Source: Fiske 1996.


Box 3. Major Stakeholders' Accord in Mexico

After more than a decade of abortive attempts consensus on decentral-ization was reached in Mexico through an Actuerdo Nacional para laModernizacitn de la Educaci6n Bdsica signed on May 18,1992 by the federalgovernment, the government of each state, and employees of the NationalSyndicate of Education (Sindicato Nacional de Trabajadores de la Educacion).The acuerdo is meant to address "the ambiguity in the distribution ofresponsibilities between the federal, state, and municipal governments."The introductory chapter of the document states that the Mexican consti-tution gives the federal government legislative capacity in education andthat the federal government has issued an educational law calling foragreements among the three levels of government on the distribution ofresponsibility for education functions. Thus the acuerdo is considered aninstrument for implementing the law.

Through the acuerdo the management of education employees isdevolved from the federal to the state level, and municipalities are maderesponsible for "maintenance and equipment." Financing is sharedbetween state and federal governments, the latter having the duty of sub-sidizing less wealthy states in order to safeguard equity. Nevertheless,the federal government remains responsible for most important func-tions of the education system, such as the planning of basic education, thechoice of textbooks, assessment, and teacher training (Mexico 1992:9).

Source: Mexico 1992 (p. 9).

2

Legislation for Decentralization

Once the objectives of the decentralization program are establishedand the context in which it will take place is known, the legal

instruments that will be used must be defined. These will vary fromcountry to country, depending on the existing legal and regulatoryframeworks. In most cases a basic law governs the provision of educa-tion. This law must be amended to provide the new legal frameworkfor the decentralized system.

Two sets of questions will need to be addressed. First: which aspectsof the reform must be addressed in the law itself and which can be left todecrees or regulations? Second: which other laws must be taken intoaccount or modified in order to implement the reform? Reformers mayneed to consider certain provisions of the national constitution and mayneed to amend the laws governing the powers and functions of localauthorities and the laws governing the status of teachers as civil servants.

Diversity of Legal Instruments

The rules of the existing legal system in a given country may be set outin several sources. Apart from the constitution, the highest source is thelaw. Laws are adopted by parliaments or national assemblies, enactedaccording to formal steps (such as signature), and then published.Parliaments have the widest latitude in choosing the contents of legis-lation and are limited only by the requirements of the constitution and,in some systems, by international treaties to which the country is aparty. In some countries "organic laws" defining the organization andattributes of government institutions may have constitutional status.Laws are adopted by the national assembly after a complex and oftenlengthy procedure and can be amended or repealed only by the samebody, following similar procedures. For this reason laws should con-tain only the basic principles of the new decentralized system.

Administrative and procedural details that may have to be modifiedas problems arise may be dealt with through government decrees e

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LEGISLATION FOR DECENTRA I ZATION 13

ministerial regulations and orders, which also have the force of law ifthey meet requirements for this purpose. These instruments areadopted by the executive branch rather than the legislative branch, andthe process of adopting or modifying them is generally simpler, as itdoes not involve the legislature. If properly adopted and published,decrees are generally compulsory. They are more flexible tools thanlaws. However, in each system there are hmits as to what can be dealtwith in decrees rather than in laws. Indeed, decrees are intended tofacilitate the application of laws and to deal with procedural matters.(These instruments have many different names and different bodiescan adopt them. In some cases the executive may have the power toadopt "decree-laws" or similar instruments in emergency situations orwhen, for other reasons, the executive acts in lieu of the legislature.)

One of the objectives of decentralization is to give the power to reg-ulate parts of the education system to local bodies. These bodies nor-mally act by adopting regulations, which, when adopted in accordancewith the limits of the powers granted by law, are legally binding.

In practice, the system often emerges from a series of laws, decrees,and other instruments adopted at different times. In Colombia a newconstitution and general education law, as well as a decentralizationlaw, provided the legal framnework for the decentralization of educa-tion in 1991. In Ghana decentralization was implemented with the pass-ing of the 1988 Local Government Law, which was reinforced in 1994by the Local Government Act. The decentralized regime in Chile wassupported by ad hoc presidential decrees for nearly a decade, with aneducation law enacted only in 1989. In Brazil decentralization involvedthe enactment of new constitutions at both the federal and state levelsin 1988 and 1989 (dos Santos and Camilo 1993: 397). In England a com-plex series of acts of parliament and statutory instruments governs theeducation system, notably the 1994 Education Act (the Butler Act), theEducation Reform Act of 1988, the Further and Higher Education Actof 1992, and the Education Act of 1993 (United Kingdom 1995: 7).

Contents of the Legislation

A review of several countries' experiences with decentralization leadsto the conclusion that decentralization legislation should have threebasic features:

* It should be comprehensive enough to clearly define the rights andobligations of the respective entities involved.


* It should be flexible enough to allow for efficient implementation.* It should be realistic, primarily in taking into account implementa-

tion constraints.

Three decades ago, discussing educational planning and adminis-tration in East Africa, Roger Carter noted that, "good legislation is amatter of balance. The main consideration is whether it allows elbowroom for initiative and development both at the center and in the parts."He added that, "the amount and nature of the legislation that is neces-sary in a particular country will depend upon local circumstances, tra-ditions and temperaments as well as on the activities that are to beregulated" (Carter 1966: 32). This is still the case today.

The required "elbow room" will be provided if the law is cast interms that are general enough to allow its implementation to evolve,and if it defines the power given to other bodies in terms broad enoughto eliminate undue constraints. At the same time the legislation shouldbe precise enough so that the parties involved in the administration ofthe system know their respective responsibilities.

Foresight is crucial. For example, one common consequence ofdecentralization is that local authorities become liable for their acts oromissions, including those resulting in unsafe school buildings.Examples of local responsibility for schools abound. In Chile in 1980the Decentralization Act transferred responsibility for schoolpremises from the Ministry of Education to the municipalities(Bullock and Thomas 1996). In Zimbabwe church authorities or dis-trict councils own most schools (Bullock and Thomas 1996). Unlesscare is taken to specify the respective roles of the various bodiesinvolved, the lines of responsibilities may become blurred. In France,for example, schools are established as autonomous local bodies, butthese bodies are headed by a principal appointed by the central gov-ernment who must rely on funds provided by the local authorities tomaintain the schools. When planning the devolution of school own-ership or management, planners should beware of such legal impli-cations and try to assess the capacity of local authorities to take onthese responsibilities.

Transitory arrangements are often required. If the legislator movestoo fast, chaos may ensue. The new functions transferred to the localauthorities may exceed their capacity. Responsibilities must be matchedwith authority and resources. A law that is not realistic in this regardwill not be complied with.

Gaining consensus and establishing a realistic timeline for enactingdifferent pieces of legislation are also important to successful imple-mentation. Formal mechanisms for gaining consensus, such as consul-

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